Comment to article 8. Exercise of civil rights  The Civil Code of the Republic of Kazakhstan  

The exercise of civil rights is the sphere of the copyright holder's free discretion. Only he has the right to decide whether or not to require an obligated person to perform an action that amounts to the exercise of a right.

In the previous legislation, the exercise of the right was often interpreted in the literature as the duty of the copyright holder, especially if it was a state organization. For example, the right of the customer to collect penalties from the construction organization or supplier who violated the terms of construction (delivery) was understood. 3The two legal relations are clearly mixed up here:civil law, in which the collection of sanctions was the right of the creditor, and administrative law, in which this collection served as the content of the obligations of the state organization to the state.  

The creditor's refusal to exercise the right does not terminate the right as such. In Almaty, for example, there was a case when a writer-playwright did not allow the Copyright Protection Agency to file a lawsuit in court in his (the writer's) favor against the theater for the compulsory collection of royalties for the public performance of the play. But the writer's right to receive a fee was not thereby terminated. And the possibility of compulsory exercise of the right to the future remains. However, the creditor's will, aimed not at renouncing the exercise of the right, but at renouncing the right as such, terminates the latter (see art. 373 CC and its commentary).

The requirement of paragraph 4 of the commented article introduces ethical principles into the exercise of law: fairness, good faith. It is impossible to demand the exercise of the right if this violates the principles of justice, for example, it is unfair to determine the size of the shares of expenses and incomes of participants in common activities if such amounts clearly do not correspond to the degree of participation in achieving the result. Dishonesty can be expressed in the conscious disregard of other people's interests for their own benefit, i.e. this is malicious behavior towards other persons. For example, art. 261 of the Civil Code defines an unscrupulous buyer as a person who knows that he is acquiring property from someone who has no right to alienate it. Dishonesty may manifest itself in an insufficiently caring attitude towards someone else's property, entrusted by a loved one, etc.

Dishonesty is often confused with guilt for violating duties (see paragraph 6 of Article 9 of the Civil Code), but these are different, although overlapping concepts. Guilt is related to the violation of a specific legal obligation. Dishonesty may cover behavior that is not directly a legal obligation. For example, when obtaining a license to use someone else's invention, the licensee, seeing that the licensor sets an erroneous date extending the stipulated period of use of the invention, does not warn the licensor about this.  

Usually, guilt is associated with the actions of the violator of the right, and dishonesty is associated with the use of other people's mistakes and blunders.  

The fairness and good faith of the actions of a participant in civil law relations are assumed, i.e. he is not obliged to justify himself with a general accusation of dishonesty (injustice), on the contrary, the one who accuses another participant of dishonesty or injustice must prove which specific actions involved such dishonesty or such injustice.  

The commented article also requires the holder of the right to exercise its reasonableness. Reasonableness, obviously, should be understood as a real assessment of the circumstances under which the right is exercised. Therefore, a dismissive attitude towards such an assessment may be considered unreasonable. It is unwise, for example, to entrust the preparation of a special complex document to a person, even if he is conscientious, but does not have knowledge in this field.

The reasonableness of the claims related to the exercise of the right is assumed and can be refuted only by convincing evidence from the opposing side.  

The commented article prohibits actions to exercise the right in contradiction with its purpose or actions specifically aimed at harming other persons, i.e. actions that can be called abuse of the right.

Examples of such abuses include demands to demolish a building that slightly impedes the illumination of a neighboring plot of land, and the deliberate use of loudspeaker devices at full power in order to disrupt the peace of neighbors. Article 158 of the Civil Code explicitly states the invalidity of transactions that contradict the principles of morality, and Article 188 of the Civil Code prohibits the exercise by the owner of his powers if this violates the rights and legally protected interests of other persons and the state.  

The legal significance of the requirements to the considered conditions for the exercise of the right lies in the fact that in case of their violations (unreasonableness, injustice, dishonesty, abuse), the right holder's claim for the protection of the right may not be satisfied by the court.

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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.  

Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.

Deputy head Professor Basin Yu.G.